Her Word Against His – Detecting Lies in Interviews

- Wednesday, May 17, 2017

One of the most challenging aspects for employers attempting to deal with workplace bullying or misconduct is getting to the truth of allegations, especially in circumstances where the apparent victim's version of events contradicts that of the alleged bully.

Most of the time, this disparity can be put down to differences of opinion or misinterpretation of intentions.

For example, the accused bully may have simply felt that they were performance-managing their subordinate, whereas the victim may have felt denigrated and abused. A purported victim may consider themselves to be the target of sexual harassment, while the accused bully may have simply wanted to ask them out for a friendly coffee.

But occasionally, for whatever reason, apparent victims of bullying tell lies in the interview process and make false accusations of bullying. This could be because they dislike the alleged bully, believe the "bully" should be dealt with by management or simply because they have embellished their story and feel that they need to stick with it now that a complaint has been made.

Regardless of the myriad reasons why a victim may lie during an investigative interview, how should this be dealt with by an employer?

GUARDING AGAINST BIAS

Although it is natural to sympathise with a purported victim, and perhaps unconsciously believe their version of events over that put forward by the alleged perpetrator, the most important function of a workplace investigator is to establish the truth surrounding the allegations.

It is therefore imperative that any preferential bias in favour of the apparent victim is removed. If you do not feel that you can adequately perform an interview without such bias, whether because of your relationship with the victim/bully or because you can personally relate to the allegations of bullying, ensure that another person is tasked with conducting the interviews.

PICKING UP VERBAL AND NON-VERBAL CUES

Once the claimed victim is participating in the interview process, ensure that you are observing any cues which may indicate that they are not telling the truth. These could include:

  • Overly elaborate stories and excessive irrelevant detail, suggesting an invented story,
  • Gestures and words not matching each other in context, implying that the words have been rehearsed.
  • Whether the story makes sense – is it even plausible that the allegations being made against the bully could be true?
  • A lack of consistency – is the interviewee telling the same story each time or are details changing?

Of course, these can be subjective indicators. It is important to tread carefully when deciding whether a victim is lying about their version of events: making an unfounded and inaccurate accusation can cause even greater distress to an innocent victim.

In this regard it can be helpful to have another person sit in on the interview with you, so that they can provide their own opinion on whether the version of events being provided is accurate, and temper your initial reactions.

THE NEED FOR CORROBORATING EVIDENCE

Once the alleged victim has provided their version of events and it is apparent that this contradicts that of the claimed bully, it is essential to seek corroborating evidence to either prove or disprove the victim's story.

In addition to speaking with third party witnesses, such as other staff members at work at the time of the alleged incident, this could include evidence such as reviewing CCTV footage, checking personnel files for prior complaints or even performing basic checks such as making sure that both employees involved in the complaint were even working together at the relevant time.

Conducting a workplace investigation is a complex task, often requiring specialist knowledge and experience. WISE Workplace can assist with conducting interviews if you wish to safeguard the investigation process by avoiding any allegations of bias or favouritism, or are otherwise concerned that the interviewee may not give the full version of events. Please feel free to contact us for more information.

Child Sexual Exploitation & Trafficking Conference Insights

- Wednesday, May 10, 2017

A wrap-up of the Children, Justice and Communication Conference at Portsmouth University, May 2017.  Last week, I had the privilege of attending the Children, Justice and Communication Conference at Portsmouth in the UK.  The conference is hosted by some of the world’s leading academics and practitioners working in the areas of child sexual exploitation, trafficking, child abuse, incest and more.  

Opened by Professor Ray Bull, the conference featured the work of Professor Becky Milne, Dr Julie Cherryman, Dr Lucy Akehurst and Professor Penny Cooper to name but a few. 

The audience, mostly police officers from the UK, represent those forward-thinking agencies and officers who want to make a change for the good and tackle some of the most challenging crimes. The number of police officers with higher research degrees is particularly impressive, and is having a massive impact on the quality of policing not only in Britain, but around the world.

Tackling challenging issues across the globe

Some of the issues covered on the first day included the conundrum of obtaining evidence from teenagers who have been exploited and trafficked but consider their actions to be consensual and complicit in the activities. How do we empower these individuals to become witnesses rather than to take on the persona of victim? 


Dr Brian Chappel, a senior police intelligence expert, spoke of the use of juveniles as critical intelligence sources necessary to infiltrate youth gangs. Interestingly, his research showed that the 10 informants who participated in his study were themselves free from any police intervention up to a year later. 


Dr Shaleve-Greene addressed the issues for agencies in handling or identifying the 10,000 unaccompanied migrant minors that go missing across Europe every year. This was another statistic to get my head around – this number reflects only those we know about who are missing and vulnerable to traffickers and exploitation. There are also tremendous challenges to local safeguarding children boards, such as the one operating in Kent on the south coast of Britain. 


Dr Sue Gower spoke about the services and educational needs of their staff when they take on responsibility for the children from their own county, a similar number from neighbouring counties, and then double the number to account for the unaccompanied immigrant minors arriving from Europe. 

How intermediaries are working successfully overseas

Professor Penny Cooper hosted a panel of experts who presented on a range of issues connected to the use of intermediaries who support and assist children and vulnerable adults to communicate with police, and courts. 


The NSW Department of Justice is currently trialling the use of intermediaries, so it was great to hear the many ingenious and fantastic ways these experts have of working with children to help them communicate. Convictions have been secured with the use of evidence from children as young as three-years-old. These presentations also addressed the increasingly common needs of children with autism spectrum disorder. 


As practitioners, it’s so important to stick our heads above the partition wall and have a look at the fantastic work going on around the world. 


WISE Workplace offers consulting and investigation services to assist and support workplaces in conducting fair and efficient investigations and developing comprehensive complaints processes.

Contact one of our offices to talk to an advisor about a free consultation.

So You've Been Accused of Bullying - What Now?

Vince Scopelliti - Wednesday, May 03, 2017

The issue of workplace bullying is much more openly discussed these days, and most employees are aware that they can make a formal complaint to their employers and have the matter investigated – with appropriate resolution to follow.

But what happens if you are not the victim, but instead have been accused of being the bully?

HOW TO DEAL WITH AN OVERWHELMING EXPERIENCE

Being accused of bullying is never pleasant. It can create a number of confusing feelings, including concerns about your job security, a sense of lost control over your workplace and working experience, and frustration or even anger towards your accuser.

This can particularly be the case if you dispute that the alleged behaviour occurred or took place as claimed, and feel that you have been wrongly accused.

In some circumstances, those accused of workplace bullying may even develop feelings of depression or anxiety.

But there are strategies which you can employ to stay focused and keep your emotions under control while the investigation process is underway.

These include:

  • Remembering that the accusation is only an allegation and does not mean that anything has or will be proven against you.

  • Understanding that there is an investigation process which needs to be followed to ensure fairness is afforded to both parties. Your organisation will need to investigate the allegations and talk to staff before they get your side of the story.

  • Avoiding interfering in the investigation, as this will risk a finding of bias and will only extend the process.

YOUR RIGHTS AND RESPONSIBILITIES

As the alleged perpetrator of the workplace bullying, you are entitled to be advised of what the allegations made against you are, although you cannot be provided with a copy of the initial letter of complaint.

This is to ensure that the complainant maintains some privacy and avoids potential further harassment. Once you have been advised of the complaint and the details of the allegation, it is a good idea to make a written record of your version of events.

You have the right to participate in an interview and, if you take up this right, it is important to calmly address the facts and provide a rational, not emotional, response to the allegations.

You are also entitled to request that you have a support person to sit in on interviews and provide you with moral support throughout the investigation process.

The key thing to remember is that you have the right to an unbiased investigation. If you genuinely believe that the investigator or somebody with the power to make the final determination is prejudiced against you or otherwise has a conflict of interest, you should set out your concerns, preferably in writing, and request that another person becomes involved in the process.

If you continue to feel that the process is tainted by bias, you can contact the Fair Work Commission's Help Line or obtain independent legal or consulting advice to ensure that your rights are protected.

By the same token, you should avoid discussing the complaint at all with co-workers or decision-makers, and certainly should not engage in discussions with the complainant under any circumstances. Any attempt to do so may be perceived as an attempt to influence witnesses or otherwise interfere with the investigation.

REMEMBER THAT THE INVESTIGATION CAN TAKE TIME

It's important to be aware that the workplace investigation process can be lengthy, and more serious allegations of bullying might take six or more weeks to investigate. Factors such as the victim (or you) going on stress leave or annual leave can also affect the timeframe of the investigation.

Although it is certainly justifiable to feel stressed, and you should seek support if you feel unwell, going on medical leave in response to the complaint will only prolong the investigation. Your health is likely to be better served in the long-term by assisting in the process, enabling a quicker resolution.

Being accused of workplace bullying and the subsequent investigation process can be an upsetting experience. If your organisations needs assistance in how to respond to bullying allegations to ensure procedural fairness for all parties, we can provide you with advice on the investigation process. Feel free to contact us here.

Witness Statements Protected in Australia Post FOI Bid

- Wednesday, April 26, 2017


A recent decision of the Australian Information Commissioner has confirmed that certain categories of internal documents cannot generally be forced to be the subject of a disclosure process.

The decision, which was handed down by Commissioner Tim Pilgrim on April 5, 2017, arose from a refusal by Australia Post to produce documents to a former employee, identified for the purpose of the proceedings as "LC".

LC had complained to his former employer that he had heard two managers making "derogatory comments" about him, and reported that he had heard from an HR officer that the managers would be disciplined for their actions. Accordingly, LC issued a Freedom of Information (FOI) request seeking documents pertaining to Australia Post's investigations, with a view to identifying what disciplinary action would be taken.

aUSTRALIA POST CLAIMS DOCUMENTS EXEMPT

However, the requested documents were not produced by Australia Post, which claimed that the materials were exempt from production under sections 47E(c) and 47F of the Freedom of Information Act 1982 (Cth).

Section 47E(c) of the Act provides that documents are not required to be produced if they would or could "have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency". Meanwhile, section 47F states that documents need not be produced if they would unreasonably reveal personal information about any person, including a deceased person.

LC requested a review of the FOI decision. However, Commissioner Pilgrim agreed with Australia Post's refusal to produce the documents, in accordance with the "management functions" exemption set out in section 47E(c).

RELEASE OF DOCUMENTS WOULD 'IMPEDE INVESTIGATIONS'

In these circumstances, the documents related to both managing and assessing personnel because they related to complaints by employees and associated disciplinary proceedings.

Specifically, Commissioner Pilgrim found that documents including witness statements and counselling or disciplinary action documents directly related to the management functions of an organisation, and accordingly could "reasonably be expected to have a substantial adverse effect" on those functions.

In particular, Commissioner Pilgrim concluded that permitting the release of these documents would impede the proper progress of investigations, because there was a very reasonable prospect that it would put people off making complaints or providing honest witness statements during enquiries, particularly over concerns of "backlash" from co-workers and supervisors or senior employees.

Having regard to the nature of Australia Post's business, Commissioner Pilgrim also found that public interest dictated that Australia Post and other government organisations should be able to protect the integrity of their code of conduct complaint processes.

THE WIDER IMPACT ON WORKPLACE INVESTIGATIONS

The recent decision in LC and Australia Post highlights the importance of employers being able to maintain the integrity, privacy and confidentiality of their internal disciplinary processes. In particular, witnesses and complainants can be reassured that anything they divulge and which is recorded during the provision of interviews cannot be easily disclosed on the basis of FOI requests.

Make sure that your internal documentation and disciplinary processes are protected, private and accurate. The majority of unfair dismissal claims are due to lack of process and procedural fairness. Fix the process and reduce time and money spent in court with the Workplace Investigation Tool Kit. You can find more information about it here

A Perplexing Problem: Protecting Children Overseas

- Thursday, April 20, 2017


Every year billions of Australian dollars are provided to fund aid projects overseas. The money is targeted to assist developing countries with education, housing, health and community projects. Naturally children are a prime target group for these aid programs.  The majority of these organisations are funded by the Australian public via donations and government funding provided to not-for-profit organisations, many of them faith based organisations.

International rules and expectations govern the protocols for handling and responding to allegations related to child protection, however, enforcing these laws is a tricky business often involving multiple jurisdictions and multiple agencies who may disagree around responsibilities and liabilities.

Policies and procedures are not enough to protect children who are by definition amongst the most vulnerable in the world.

Small operations, voluntary management and high dependency on the goodwill of front end service delivery mitigate against strong child protection regimes. Poor oversight due to long distance, remoteness and cultural differences are also key features of this problem.

Funding bodies in Australia are expected to have high quality child protection systems and policies in place to gain government funding but the challenge of enforcing or even providing adequate training in the expectations to the end providers of the service can be beyond reach.

Now that we know that we cannot unquestioningly depend on the nature of goodly people to act without harming children, what cost do we place on the need to provide secure safe environments for children receiving charitable services?

Documents provided to the Guardian relating to the level of abuse within detention centres on Nauru demonstrate the abject failure of outsourced government funded programs. How then do we expect small voluntary projects to be faring against these standards?

It is clear that policies and procedures are woefully inadequate yet how much of the donated money do we want spent on compliance when it comes to protecting children?

WISE Workplace is regularly requested to undertake investigations of allegations made against staff overseas who are working or administering charitable projects. The work requires a high level understanding of the environment, the agency, funding requirements, boards and community management structures, and the local culture and cultural background of staff and service recipients. The work remains some of the most challenging to investigate. Weak employment relationships can lead to inconclusive outcomes and an inability to enforce any restrictions on volunteers in the field.

For those organisations with managers in Australia trying to manage complaints or allegations arising from activities overseas, using the support of experienced investigators can be a godsend melding the investigative skills of experienced child protection investigators with the cultural and service delivery expertise of the coordinators working for the agency.

Our top 10 list of must do’s if you are a coordinator of a charity funded project overseas:

  1. Nominate a single contact person with responsibility for dealing with complaints related to child protection within your agency

  2. Have clearly articulated Child Protection Standards and Guidelines

  3. Have clearly articulated procedures for dealing with complaints

  4. Understand the criminal law in the country of service delivery

  5. Understand the employee relationship between the funding body and the service providers on the ground

  6. Know your legal obligations under your primary funding agency agreement

  7. Respond quickly to complaints

  8. Conduct a risk assessment and take protective action if necessary

  9. Identify a suitable contact person on the ground in the foreign country to be a liaison pain

  10. Seek specialist help when complaints are serious or complex to investigate.

WISE Workplace runs regular training programs on the principles of undertaking workplace investigations. Our facilitators have extensive experience and expertise in managing all kinds of challenging investigations including running operations overseas via Skype using local contacts. Our unique Investigating Abuse in Care course provides valuable skills in how to assess complaints, reporting obligations, drafting allegations, interviewing victims and respondents, making decisions and maintaining procedural fairness. Book now for courses in May 2017.

Unexplained Injuries in Care – 3 Tips for Investigators

- Wednesday, March 29, 2017
unexplained injuries in care

It goes without saying that injuries occur in all workplaces, not just the community sector. Yet there are certain unexplained injuries within care environments that should receive particular attention.

We set out our top three 3 tips for investigators when confronted with an unexplained injury allegation in aged or disability care contexts.

1. FULLY UNDERSTAND THE CARE ENVIRONMENT

Those charged with investigating claims of abuse by carers have a challenging task. Both circumstances and injuries can be ill-defined, with sometimes little to go on in terms of firm evidence. This is due primarily to the nature of childcare and other care environments – vulnerable people often have difficulty explaining that workplace violence hasoccurred.

Patients can be in a frail or vulnerable state for example, with high dependency on assistance with personal care. Bathing, dressing and feeding in sometimes tight spaces with over-worked staff can lead to a number of unintended injuries for both carers and patients alike. The complexities are substantial. However, the need to fully understand when an injury is a reportable incident under new legislation is vital.

Clients and family members might point to an unexplained injury and assume that the care environment is to blame. Yet investigators should assume nothing as they take careful stock of the facilities, mechanisms and personnel involved in that particular care arrangement.

2. INVESTIGATE FAIRLY THROUGH EMOTIONAL TERRAIN

Good investigators know to treat everyone equally during workplace investigations. We maintain a professional demeanour and ensure that all relevant people are heard. Yet communication by investigators in the aged and disability care can require a unique approach to objectivity.

Clients or family members in these environments can express shock, outrage and complete certainty when it comes to the investigation of an unexplained injury. And investigators themselves might be emotionally swayed when faced with allegations of child abuse, elder abuse or disability abuse.

However, an unexplained injury is exactly that – unexplained. Taking into account the communication needs of the client, the tangle of information supplied by families, plus available documentation at the workplace, it is critical to refrain from drawing any inferences throughout the investigation.

3. ComMUNICATE APPROPRIATELY WHEN nEEDS ARE UNIQUE

We need to take into account the particular communication needs of those vulnerable individuals claiming elder abuse, child abuse or disability abuse by a carer. For example, specific communication technologies, scribing assistance, emotional support and/ or advocacy services might form an integral part of investigations into unexplained injuries.

It is essential to understand the nature of the assistance and make objective determinations around interviewing methods. Questions might include: is the scribe or support person related to the injured client? Does the client appear both willing and able to engage with the interviewer? Is there any visible fear, withdrawal or discomfort?

As a corollary, it is vital to avoid any dismissive or patronising communication techniques when interviewing the person in aged, child or disability contexts. We should never assume that they cannot or won’t communicate – particularly if someone else in the room tells us this! As well as having to sport an unexplained injury, it would be disappointing indeed if the injured party leaves an interview feeling ignored, pressured or misunderstood.

THE UNEXPLAINED INJURY – TAKING CARE

Workplace investigators must be extremely careful not to jump to any conclusions when an unexplained injury arises in aged or disability contexts. Keep in mind our three top tips on understanding, fairness and communication in care environments. This will help you to create and manage the best possible workplace investigation. After all, Australians are known for looking after each other well, and a good investigation can ensure that unexplained injuries in the caring sector are dealt with fairly at every turn. 

Our upcoming must-do 2017 investigation training will give you the best possible tools for tackling unexplained injuries in aged and disability care. Join is there, or get in touch to access our top-selling Workplace Investigation Toolkit, plus other professional resources to assist your investigations. 

The Key Warning Signs of Grooming and Sexual Manipulation

- Wednesday, March 22, 2017

warning signs of grooming

As the Royal Commission into Institutional Responses to Child Sexual Abuse has painfully revealed, our most trusted institutions have at times mishandled some of the worst cases of child abuse imaginable.

It is becoming clear to us as a nation that the trust given by children and other vulnerable people to individuals in positions of power is boundless. And it is this trust that can become hijacked via the insidious tactics of grooming and sexual manipulation.

Standing outside of the abhorrent situation, we might ask – how on earth could this happen? Wouldn’t a sexual predator be immediately visible to an employer in a child-focused setting? However, grooming and sexual manipulation work in such a subtle way that even other adults close to the situation can be lulled into a false sense of security.

The new NSW legislation on Reportable Conduct has commendably included grooming as a distinct behaviour that must be reported in child care contexts. It is therefore essential that all child-related employers become aware of the warning signs of child grooming and sexual manipulation in the workplace.

Warning Sign 1: The special relationship

Grooming behaviour can manifest as the slow development of a special relationship between a worker and a particular child or children in care. This might involve the giving of privileges, compliments or treats that might be held back from other children. The child can develop a strong sense of trust and even enjoyment from this relationship, particularly if fun and friendship appear to be the key drivers. Such children might previously have been at the less-confident or lonely end of development, with the perpetrator appearing to have commendably ‘drawn out’ the child.

Warning Sign 2: Returning favours

Once a seemingly trust-based relationship is in place, the perpetrator of child abuse will often connect their special gifts and words with requests for touching and/or emotional favours from the child in return. At first this might not seem like an unpleasant or abusive situation in the mind of an innocent child – after all, they have identified this adult as a friend to be trusted. Observers might in fact see a child drawn to a particular carer quite intensely. It can be heartbreaking to think that this could be the middle stages of a targeted grooming strategy.

Warning Sign 3: The conflicted or ‘acting out’ child

When behaviours gradually move into sexual talk, touching or more overt acts, the perpetrator of child abuse can take a more sexually manipulative stance against the child. The child might resist the abuser, but can be manipulated into continuance of the inappropriate relationship through emotional blackmail. One of the earlier favours granted to the child such as gifts, treats or special games might be threatened or recalled. The child can then become anxious and in some cases will actively seek to appease the sexual abuser. Observers of the situation might see contradictory signs between the once-friendly employee and child. Behaviourally, the child could lash out at others or experience a regression in development.

Make knowledge your strength

Thankfully there is now so much research occurring around grooming behaviours and sexual manipulation in care settings. Further, Australian legislatures are slowly but determinedly developing laws to protect children and to enable the effective reporting of inappropriate conduct in the workplace.

Child sexual abuse tends to arise not from some caricature of an evil villain but in fact via a subtle conflation of grooming, manipulation, child vulnerability and institutional ‘blind spots’. Codes of conduct and training on professional boundaries are just some of the methods that can assist employers in combating the scourge of child sexual abuse by carers.

We actively investigate and advise upon issues within child-focused workplaces. In addition, we have handled grooming complaints between remote student teacher networks, top sporting organisers and athletes, elderly residents in a mixed care facility, bus drivers and passengers, disabled individuals and in-home carers. Every case requires skill, sensitivity and an unbiased examination of the evidence.

Join us in our enduring quest to make workplaces safe for all concerned - not just owners and workers, but for those precious Australian children who inherently trust the adults around them. We are proud to be presenting purpose-built training on Abuse in Care in coming months. Give us a call for further details.

Criminal Conduct and the Likelihood of Conviction in Care

- Wednesday, March 15, 2017




It is a great tragedy that the most vulnerable people in society – children, the elderly and the disabled – often fall victim to the most heinous types of abuse in care settings.  
In some cases, the abuse can be obvious, such as when there is physical assault that results in visible injuries. At other times, the abuse is much subtler and more difficult to detect, as is the case where there is grooming for intended sexual abuse, financial abuse or general neglect.
Regardless of the type of criminal conduct perpetrated against the disabled, the elderly or children, an even greater tragedy is that it can be extremely difficult to record convictions against the abusers.

Obstacles to conviction

One obstacle which arises in the care sector is that there is an apparent reluctance to report abuse or other criminal actions such as fraud or theft. In part, this may be due to the power imbalance between carer and client, a fear that the reporter may not be believed or taken seriously or, perhaps worse, because for one reason or another, the client may not actually realise that what has happened to them constitutes criminal conduct. Another potential reason for non-disclosure of criminal conduct may be because the client is legitimately concerned that they will lose access to a care worker who is providing them with much needed assistance and support, regardless of the criminal conduct they are also committing.

Many cases of elder abuse, disability abuse or child abuse are heavily reliant on the victim's version of events and, if this is not provided, there is a significant dearth of information upon which a conviction can be secured.
A further hurdle is that forms of abuse or criminal conduct committed in the care setting are so abhorrent that employers or co-workers of those who are accused seldom wish to believe the allegations, especially when they involve sexual grooming or child abuse.

This may subconsciously cause employers or investigators to develop a bias against the complainant and, in the case of investigators, may mean that the inquiry is not conducted as thoroughly as possible. This in turn may mean that there is insufficient evidence to provide to a court in order to secure a conviction.

A lack of physical evidence

Perhaps most crucially, many types of criminal conduct in the disability and care context are difficult to secure convictions for because there is often very little physical evidence which can be presented before a court. It is incredibly difficult to obtain proof of somebody grooming a child, elderly or disabled person for intended sexual or other abuse. Similarly, even injuries such as might be sustained through physical abuse can often be apparently legitimately explained in the care context because of the vulnerable nature of the victims – children often hurt themselves in play or by being careless, while the elderly can be infirm and become easily injured in the ordinary course of events.

Safeguarding investigation services

The most powerful weapon against criminal conduct in care settings is to ensure that any investigation is undertaken objectively, skilfully and with consideration for what requirements the courts may need to secure a conviction.
At Wise, we are experienced in the complexities of conducting investigations into alleged criminal conduct, particularly in child protection settings. Contact us for more information.  



Does the NDIS Complaints System Have Enough Reach?

Jill McMahon - Wednesday, March 08, 2017


For those vulnerable people across Australia living with disability, the introduction of the National Disability Insurance Scheme (NDIS) has been heralded as a much-needed security net. And for those caring for disabled individuals, the NDIS provides a framework for sustainable care arrangements. 
 
In many ways, the introduction of the NDIS is the ultimate ‘good news’ story. Essential services and funds for disabled individuals can now be accessed. Particularly, the types of care that exhausted families have provided around the clock can now be augmented by paid carers under the scheme. 

Yet such a vast and complex scheme necessarily requires safeguards against unfortunate phenomena that can arise in care environments, such as child abuse, elder abuse or other forms of abuse by carers. 

A responsive and effective complaints system is an essential adjunct to the NDIS, which will eventually sustain some 460,000 disabled Australians under the age of 65. As at February, 61,000 Australians have been brought into the scheme.

How the NDIS complaints system operates

The NDIS complaints system is intended to help participants in the scheme provide feedback, or make complaints about their own experiences or the system in general.   

There is some concern, however, that the complaints system is a somewhat toothless watchdog. Individuals suffering with a disability can lodge a formal complaint about a care provider, for example, but the care provider can at most be removed from the list of scheme-approved providers. There is no mechanism under the system for more significant sanctions.    

This may be appropriate in circumstances where the care provider has simply provided poor treatment or has an unpleasant manner or clash of personalities with the recipient of care, but falls far short of the mark in circumstances where, for example, there is abuse or unexplained injury.  

On such occasions, the scheme participant may have to look to other procedures to try and address any serious grievances.

What other mechanisms for complaint are available?

In NSW, if a person living with a disability in a residential facility suffers a reportable incident at the hands of a care service provider, that incident must be investigated and reported to the appropriate Ombudsman, in accordance with the Ombudsman Act 1974.

A reportable incident includes the commission of sexual offences or misconduct (including those committed in the presence of the person suffering the disability), assault, fraud or financial abuse, and ill-treatment or neglect by a carer. Unexplained injuries also fall within the same category of reportable incidents.  

However, this only covers those clients who are living in residential care – and misses the many participants of the NDIS who rely only on in-home services.  Similarly, there is no legislation which provides any requirement for a ‘suitability to work with disability services’ check, unlike the child protection legislation now effective in NSW, the ACT and Victoria. 

Those utilising aged care services are able to rely on national reporting schemes, but regrettably even a carer who has been conclusively found to be abusive or otherwise guilty of misconduct is not restricted from being able to obtain employment with another care service provider in the future.
 

Effectiveness of the system still uncertain

Given the potential risks of abuse within the system of allocating a carer to a disabled Australian, it is essential that the NDIS is paired with an effective and efficient complaint and resolution scheme. 

Ultimately, the current NDIS complaint service has significant room for growth before it can be considered to be effectively safeguarding the rights of disabled Australians. True improvement will play out most importantly by imposing greater penalties and consequences on carers who are found to have transgressed against their clients in any serious fashion. 

As the NDIS matures as a scheme, it is to be hoped that many teething issues with the complaint management system will be ironed out naturally.  

However effective investigation of incidents relating to abuse as soon as they are reported or otherwise come to light will remain the most important safeguard of the rights of disabled Australians, along with general prevention of potential abuse or misconduct by carers through a strong governance and policy regime.   Contact us about our specialised Investigating Abuse in Care training courses.  

Abuse by Carers - Defining a Sad Reality

- Wednesday, March 01, 2017

It is quite clear that employers in aged, disability and other care environments do their best to keep staff and clients safe, yet one dark phenomenon that can raise its ugly head in care contexts is abuse by carers. For many complex reasons, vulnerable people such as the aged, children, and disability clients, can be abused by the very people who are entrusted with their wellbeing.

‘Abuse’ is a broad term that has developed multiple sub-definitions in recent decades. We have seen the basic idea of physical abuse making room for more complex forms such as emotional abuse, sexual abuse, financial abuse and disability abuse. As Australia has witnessed via the recent Royal Commission, child sexual abuse has a truly distressing history. 
When an allegation of abuse by a carer arises, investigating the abuse objectively becomes a number one priority. Reportable conduct legislation is now developing across all states and territories; it is essential to understand definitional issues as reportable incidents arise.

Physical acts and omissions

Assault is perhaps the most common of the physical offences experienced in care environments. Rough handling of a client or patient can occur in any number of scenarios such as moving, changing, bathing, providing medication/ injections and feeding. And omissions such as failing to provide food, warmth, medication or post-fall assistance can also amount to offences of neglect. We often see this neglect as a form of abuse of the disabled or elderly. Feeding and changing neglect can also occur as a form of child abuse in care environments. Establishing what is truly accidental versus what is indisputably abusive is a very difficult task indeed.

The question of intent is certainly difficult, and investigations of abuse must weigh the elements involved in defining reportable conduct. For example, what appears at first glance to be abuse might turn out to be an accident or one-off omission.

Sexual abuse and manipulation

It goes without saying that children are one of the most vulnerable subsets of society, particularly in care situations (whether due to disability or family circumstances). Children are also frequently the target of sexual abuse or its precursor, grooming.

In almost all occasions of longer-term sexual abuse, the perpetrator undertakes a grooming process, designed to obtain the trust of the intended victim.
These behaviours can include paying undue attention to one specific care client, engaging in keeping secrets, purchasing gifts or trying to establish independent communication channels.

Once the grooming has taken place, and the abuse has commenced, the child or adult care client may act out, which is demonstrated by either an overtly hostile relationship with the carer (such as avoiding them or engaging in public conflict with them) or an unnaturally close relationship, which may be based on an attempt by the client to appease or satisfy the abuser.
 
The above red flags, identified by the Royal Commission into Institutional Responses to Child Sexual Abuse, must be understood by workplace investigators in order to ensure that the most vulnerable potential victims are best protected.

Non-physical abuse by carers

Due to changing values in both public and private settings, the term ‘abuse’ now has a wider and more complex scope. Psychological, financial, and emotional abuse at the hands of carers is now a real hazard across multiple industrial contexts.

Some paid and unpaid carers of the aged, older children and the disabled have been known to trick, steal and/or cajole financial benefit from their charges. This can of course provoke angry and emotional responses from all parties involved, not least of which can be outrage from loved ones. One difficulty that investigators face is gathering material from a shaken and, in some cases, infirm victim. It is essential that specialist investigative expertise be employed in such cases.

High evidentiary standards

In the criminal realm, the evidentiary standard is quite high in cases of alleged criminal assault and/ or neglect by carers. Up-to-date legal advice on these and related issues is essential if a reportable incident is suspected.

For many employers who are made aware of alleged abuse by a carer, it can be hard not to react swiftly against this individual. However, all parties are entitled to be heard in a fair and unbiased way.
For example, an unexplained injury might not signify abuse by a carer, but an undiagnosed medical condition.

The ‘culprit’ might be assumed to be a carer who sees the elderly, disabled or young client each and every day. Yet transitory people in carer environments such as cleaners, aides and kitchen staff must also be carefully vetted whenever allegations of abuse surface during a workplace investigation. Investigators must resist the temptation to draw inferences or assumptions throughout the investigation.

Understanding the way abusers work and the nature and pressures on carers are critical for investigators. Knowing how to define and classify behaviour is a crucial component of determinations over abuse allegations.
These details and advice on what evidence to collect, and how to evaluate evidence are all covered in our new Investigating Abuse in Care course. Positions are still available for courses in March and May 2017. Book now to secure a seat!